Indonesia: How To Avoid The Possibility Of Infringing Patent Rights In Indonesia

Last Updated: 19 February 2016
Article by Damar Swarno Dwipo

Article by Damar Swarno Dwipo and P. Togi Edward Sihaloho

An invention may be protected by a (normal) patent or a simple patent. In order to get a (normal) patent, the invention as disclosed in the patent application must be novel (new), involve inventive steps and be industrially applicable, while to get a simple patent, an invention only requires novelty and industrial applicability.

Processes, uses, chemical compositions cannot be claimed in simple patents, but are claimable only in normal patents.

The novelty requirement requires an invention to be new compared to any prior art published anywhere in the world before the filing date of the invention. Prior art means any technical information in the form of written publications, sales, public oral disclosures and public demonstrations or uses. The inventive step requires that a patentable invention should have technical advances over the prior arts. The industrial applicability requires that a patentable invention should be able to be produced, implemented or applied in any kind of industry.

The terms of protection for normal and simple patents are 20 and 10 years respectively. The terms are counted from the filing date of the applications and not extendable. The protection is "territorial" in nature, which means that an Indonesian patent applies in Indonesian jurisdiction only.

According to Article 16 paragraph (1) of the Patent Law No. 14/2001, a person infringes a patent if he or she does the following without the consent of the patent owner: a) where a patent is a product, makes, uses, sells, imports, rents out, delivers, makes available for sale or rental or delivery of the patented product; or b) where a patent is a process, uses a patented production process to make products and commits other acts as referred to in point a) above.

The Patent Law, however, makes some exemptions to patent infringement. If anyone other than the patent holder uses a patent for the purpose of education, research, experiment or analysis, he shall not be regarded as infringing the patent provided such use does not inflict an unacceptable financial loss to the patent holder (Article 16 paragraph (3) of the Patent Law).

Other exemption to patent infringement is for "a prior user" as defined in Article 13 of the Patent Law. The article reads in part as follows: "A party who exploits an invention at the time a similar invention is filed for patent shall still be entitled to exploit the invention as a prior user, even though the similar invention is then granted a patent."

In order for someone to be entitled to such special right, the party should file a request for, and be granted by the government, what is called as "a prior user's certificate". The request should be supported by an oath providing evidence that the party has used, practiced or implemented the invention without basing it on the information disclosed in the specification of the relevant patent.

Article 99 pf the Patent Law stipulates that the government's use of an Indonesian patent not belonging to it is not regarded as infringing the patent if the government considers the patent very important to national security or of very urgent public interest.

According to Article 130 of the Patent Law, penalties for infringing a (normal) patent in Indonesia include a prison sentence not exceeding four years and/or a fine not exceeding Rp 500 million, while according to Article 131 of the Patent Law, penalties for infringing a simple patent in Indonesia include a prison sentence not exceeding two years and/or a fine not exceeding Rp 250 million.

A patent document consists of a description of the invention, one or more claims, an abstract and, if necessary, one or more drawings. However, it should be noted that the scope of protection of a patent is defined only by the claims of the patent, not by the other parts of the patent document.

Patented products or patented processes meant by Article 16 paragraph (1) of the Patent Law encompass any product or process that may be embodied or produced based on the interpretation of the patent claims. Therefore, if a product or process which does not belong to a patent owner can be interpreted as falling within any claim of a patent, then the product or process may be considered infringing the patent.

In order to avoid a patent infringement lawsuit, it is important that someone intending to commercialize a product or process should firstly assure they are not infringing a valid Indonesian patent. This can be done by conducting a search for unexpired patents and patent applications that are relevant to his product or process.

This measure is commonly known as "patent infringement search" or "freedom to operate search". If the search reveals that his product or process does not fall within the scope of any valid patent then he should be free to commercialize his product or process in Indonesia.

However, if the search reveals that his product or process is covered in one or more patent claims, there are a few solutions worthy of consideration. The first solution is to stop commercializing the product or process to avoid a lawsuit by the patent owner. The second solution is to seek a patent license or buy the patent from the patent owner. The second solution enables the non-patent owner to keep commercializing his product or process.

A patent infringement search begins with finding the patents that are relevant to a certain product or process. The relevant patent documents can be searched through an online patent database maintained by the Indonesian patent office. The documents can also be searched from patent gazettes published periodically by the Indonesian
patent office.

The Indonesian patent office also has a service for conducting a patent search. After obtaining the relevant patent documents, the intended party (the party who would like to commercialize his product or process in Indonesia) must read and interpret the said relevant patent documents to find out whether his product or process has been covered or not within the patent claims.

A patent infringement search is not easy and is time consuming. It often involves finding and analyzing a high number of patent documents. However, the intended party can ask for the service of an Indonesian registered patent consultant to help him in completing this work.

Usually such a service will end up giving the intended party a freedom to operate search reports in which he can find some technical and legal suggestion and recommendation on whether his product or process may infringe any patent in Indonesia.

Originally published by The Jakarta Post, September 23, 2011.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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